Friday, April 04, 2014

Next Great Copyright Act Conference, reform

Need to ensure meaningful and not merely symbolic protection
to authors as well as users; otherwise it’s not a copyright law at all. Goodlatte
announced review: not necessarily reform. Proceeding section by section through
the code. Easy to kill legislation, hard to get something done. All the more
true in increasingly partisan environment, though copyright is mainly
nonpartisan. Rules of Republican caucus place term limits on committee
chairman; this colors the ambition/agenda of any given committee and weighs
against longer term projects.Too often
there’s a focus on users without regard for authors, or authors without regard
for users.

Concerned about difficulty of finding a proposal not
immediately labeled “son of SOPA.”Two
weeks ago 25 tech companies wrote to chair of finance committee, urging
opposition to trade authority—anti-TPP.Said it was first step to internet censorship/pressures ISPs to monitor
users.Democracy will cease to exist.
You might wonder what’s so cataclysmic: the claim was that takedown and ask
questions later will chill innovation. This is reference to the same DMCA safe
harbor provisions described yesterday as foundation of internet as we know it,
with calls to leave it alone. So which is it?(RT: Excluded middle?) EFF says that the TPP insists on notice and
takedown, while intermediaries ought to just pass on notices. We can debate
approach, but 512 is notice and takedown and EFF is still calling for
opposition to TPP to prevent slow erosion of rights on the internet.

Dep’t of Commerce’s Green Paper was balanced stock-taking
exercise with a number of recommendations, and no sooner had it been released
than White House received a Stop SOPA 2013 petition, reference to
administration’s continued support of provision that would close a gap in
criminal provisions that don’t provide for criminal penalties for
streaming.Fear of revived SOPA; this
isn’t true but it’s in the petition and now has enough signatures for a White
House response.So has a Stop SOPA 2104
petition, in response to the DMCA stakeholder meeting.

We need to have a discussion where we discuss shared
objectives.Not suggesting that this
stream flows in only one direction. Needs no reminder about Jack Valenti. Not
assigning blame, but we need to have a conversation.(If I were a suspicious person, I might hear
this as: you put down your biggest weapon, which is the occasional ability to
mobilize the public, and we will … continue to not be popular with the public,
though we will keep our checkbooks.Sounds fair, right?)

Our experience with UGC
principles: sat down (with whom? Hint: big content, big ISPs, not so much “users”)
and agree on set of principles.Shared
set of common goals.We all agreed:
ideally, we’d support a robust, legitimate UGC environment free from
infringement. If there were commercially reasonable, technologically effective
means to achieve that, we would work together to implement it. Foundation for
discussions that led to UGC principles. We wouldn’t have gotten to the end if
we hadn’t put ourselves in each other’s shoes.(And will you stand in my shoes if
I agree to stand in yours?)

Judge Mary Margaret McKeown, Ninth Circuit Court of Appeals

Dance between Congress and courts goes way back. Courts
sometimes have stepped in first in looking at new tech, and Congress followed:
Justice Holmes, 1911, Court extended copyright to motion pictures.Piano roll case: not like sheet music,
reasoning by analogy, metaphor, and example. Congress fixed that.Fast forward to late 60s/early 70s. Court
wrote about “drastic technological change”: retransmission of TV broadcast
without permission.Sound familiar?Courts found no infringement, but Congress
quickly blunted that ruling with compulsory licensing.

In most of the early cases, courts wring their hands about
the tech, make a decision, then almost invite Congress to step in if they’re
wrong.Doesn’t see that much in recent
years—there’s always handwringing about tech change and judicial uncertainty,
but you don’t see courts asking Congress for help. Courts are letting chips
fall where they may. Doesn’t think it’s because Congress doesn’t know how to
step in when it wants to—Lily Ledbetter case about calculating the statute of
limitations, Congress quickly responded to Justice Ginsburg’s eloquent dissent.
But perhaps as Lessig intimated, copyright doesn’t have the same policy appeal
as other social issues.

When Congress leads: 1976 Act has been amended/supplemented
at a staggering rate. Reflects modern industrial policy, set out in alphabet
soup terms (NET Act, DMCA, SOPA/PIPA). Congress has stepped out incrementally
in many ways.Stepped out in terms of
congressional authority—Eldred; Golan.But there have been very few SCt cases on copyright, aside from Eldred
and Golan, which are more about constitutional authority. The remainder is very
few cases that tell courts how copyright ought to be interpreted—Kirtsaeng is
an exception. Despite tech change and circuit splits, little guidance. Action
has been in the “inferior” courts.

Courts as a venue for the next act. Courts will remain in
the vanguard because inevitably there will be statutory, contractual, and other
disputes needing resolution.There is a
danger of courts learning tech outside the record; we need instruction from
lawyers. Deal with change through metaphors; also look at privacy and 4th
Amendment cases, because many more of those cases involve tech.At some point you will have a post-Napster
judiciary.

Courts have a skewed docket. Many key issues are resolved by
business deals, settlement, or otherwise. A single technology may be at issue
(Betamax, Grokster, Aereo), but we decide and lawyers/subsequent courts are
left to extrapolate.Fair use will
continue to dominate some legal battles.We need not the judgment of Solomon but the dexterity of Houdini.

Clearance culture/reliance on risk avoidance. Many corporate
counsel always recommend licensing; even EFF says that if you’re risk averse.
Can make sense in individual cases even with good fair use defenses, but
Rothman is concerned that courts incorporate these risk averse customs into
their legal analysis—example from Ringgold v. BET, where Ringgold’s art
appeared for less than 30 seconds, never as a focal point, and court found no
fair use in large part because of industry custom to license background
scenery. §107 should make explicit that the existence of licensing markets
should not weigh against fair use, correcting an error of relying on clearance
culture.

Formalized trade practices/agreements.Classroom Guidelines: Publishers and authors
sat down, with minimal representation of universities, teachers, no voice for
students. Universities/libraries all opposed the guidelines, but they were put
in legislative history, and courts subsequently looked at them for fairness—violation
of guidelines which were supposed to be floors/safe harbors but courts treated
them as ceilings. Need more representative group, and make clear that these are
safe harbors whose violation doesn’t reflect negatively on anyone claiming fair
use.Also, more informal guidelines
developed in valiant effort to give use communities guidance and encouragement
to assert fair use: many out of Center for Social Media. Helpful to many who
are lost and ideally insulating them from willful infringement. Despite the
positive value, there are reasons to discourage codification/judicial reliance
on them as the standard of fair use.Many statements were developed without particularly representative
groups, like large content providers, and sometimes overclaim fair use; other
times underclaim fair use (e.g., statements about photos; suggesting that one
can’t edit to the beat or spill over in a documentary, or fashion a documentary
about a copyrighted work). Legislation could clarify that private guidelines
don’t affect the scope of fair use; consider broader educational guidelines.

Regimes that overlay copyright. Creative Commons: greater
freedom than the default. David Byrne; White House; Al Jazeera have all used
them. Should largely not interfere with them in legislative process, but some
areas for intervention. Attribution is ubiquitous desire, now standard. This
preference for attribution is across the board and users want to do it.Shouldn’t make failure to attribute
dispositive, but put thumb on the scale in factor two or factor three. Another potential legislative reform: what
happens when a private license is violated? Some courts might view violation as
weighing against fair use; particularly concerned about this with ShareAlike
license, where commercial documentarians might want to use a work—should clarify
that violation of license should also not affect fair use.

Use of contracts to go beyond copyright/fair use.Private agreements about technology, e.g.
Content ID used to take down works despite fair use.Build into legislation restriction on ability
to limit through contract or tech the ability to assert fair use. Preemption might
also be an area to address this. Fair use isn’t an evil to be tolerated.
Copyright should continue to provide breathing room, perhaps codify some more
safe harbors; private ordering has often been generated by uncertainty—more safe
harbors for news, documentaries, UGC would help.

Legislation could address downside of private
ordering/clearance culture, and push back against obsolescence of fair use in
the face of contracts/tech.

Plan B: if courts consider customs in fair use, customs
should be certain and not disputed; representative of different groups; not
create slippery slopes (filesharing); motivated by efforts to establish
appropriate boundaries (not by fear).

Some things only Congress can do (term), but not the only
actor. Courts’ role: more modest reforms, such as inconsistency in liability
standard for nonliteral infringement. Copyright Office: more role for focus on
economics—need a Chief Economist, as PTO has—or at least see how an economist
would think about it. Likewise a chief technologist or tech fellow; Pallante
stumbled on testimony about SOPA because she didn’t appreciate some things
about the tech. More rulemaking could be good, though raises delicate
constitutional question, and she’s also enthusiastic about small claims
potential. Would like to revive Office of Technology Assessment, which could
talk to stakeholders, but that’s not going to happen.

Scholarship: we have to hope someone will pay attention,
though mostly they don’t. Treatises however have served as a mode of copyright
reform where the law is unclear. Copyright is impenetrable; judges are unsure
what it means; normative basis is not evident from reading the statute; judges
assume that treatise authors have analyzed the cases and thought about them,
and sometimes treatises can point law in one direction or another. Aereo: that may matter. Pet peeves:
sometimes treatises contribute to overturning clear expressions of
congressional intent, as with Baker/§102(b).
But who elected Nimmer and Goldstein? Why do they get to say what the law is
when the rest of us have something to say?

National Academy of Sciences: evidence based policy making
is a good idea. American Law Institute does principles on a regular basis; ALI
has brought people together on various controversial issues before. High
standards for review/good processes, so ALI might be good at distilling some
core principles. This could help sit on top of the statute and make it more
consistent, then over time evolve into the basis for new legislation.

Social norms: also part of what’s happening. Norms have
evolved a lot.Effort at K-12 copyright
education—she doesn’t think that will go very far, nor will DRM. Relaxation
about Web 2.0 UGC, fan fiction, etc.: things that might have looked infringing
10 years ago are less stressful now. Darwin: not the strongest or smartest or
even the ones with best lobbyists who survive; it’s the ones who can adapt.There are more of them than there are of us.
We may be the past; they are the future. How does copyright survive?(I think in this statement I am the “them.”In honor of that and of Samuelson’s Darwin
adaptation, here’s a fantastic
mashup vid using the same Darwin quote; it’s Battlestar
Galactica/Terminator: The Sarah Connor Chronicles.)

New act won’t be soon, but it’s time to start imagining it.

Q: anything achievable in near future?

Dow: depends on how you define it.Not necessarily 20-year revision process.
Pallante mentioned things in the system for some time.

Andrew Bridges: agrees we should seek more moderate
language. But one of the hyperbolic debates you discussed, TPP as new SOPA,
seemed a pretty accurate characterization because they feel like juggernauts
that feel impossible to stop—SOPA came without hearings.Do you know what’s in TPP? Can you tell us?

Dow: I haven’t visited the USTR to look at it, but many
people on all sides have done that.What
he’s seen is what most have seen, which is text that was distributed.Know generally.

Bridges: all I know is that I don’t know what’s in it and I have
to rely on someone else. We’re talking about a trade system that binds the US
to norms being negotiated in secret.Calls for an up and down vote on restrictions on what Congress can do.
Is Congress even relevant if trade agreements restrict what Congress does? What
is the role of trade agreements as engine/obstacle for copyright reform?

Dow: ongoing discussion, and members of Congress may know
more than you or I. They are relevant.I’m
more concerned about characterization of substance than I am about substance. (I bet you are!)

Samuelson: given lack of transparency about TPP/ACTA, many
of us are worried. Leaked provisions didn’t seem to be about counterfeiting but
about strengthening rules in ways that would tie Congress’s hands. Usually in
treatymaking you at least get to see drafts; transparency adds legitimacy. The
idea that for a trade negotiator to tell the Euro. Parliament about the treaty would
violate national security is ridiculous.That doesn’t add legitimacy to copyright
conversations.

McKeown: depends also on whether it’s self-executing.

Q: Leval says we should eliminate the fair use factors, and
say fair use isn’t infringement, leaving the rest to the courts.What is the role of judicial discretion in
copyright law/reform?

McKeown: discretion unbounded is tyranny. But you could
figure out which factors make sense and which have required courts to go
further. Courts are incremental. We have multiple infringement tests, and at a
minimum the SCt ought to step in to harmonize.Look to the past for what courts have done as a foundation for fair use
going forward.Courts are supposed to take
the law we have, not reform.

Q: what’s the role of big players in litigation? Samuelson
has criticized Rule 23 as copyright reform/class action as de facto way of
making reform when Congress is paralyzed (I believe Qer means the Google Books
settlement). What confidence should we have when major players are the ones
making copyright law/policy for the rest of us? We’ve heard from photographers
without as much representation (Qer says “skin in the game” but I think Mopsik
thinks they’ve got nothing but skin in the game, along with plenty of
abrasions).

McKeown: there’s definitely dominance in plaintiffs. But
simply because you have a dominant plaintiff doesn’t mean they make policy.
Many interesting decisions out of very small cases.(*cough*Garcia*cough*.)
There are areas of uncertainty, and the more cases you bring the more issues
you will tease out. But access to the courts generally is a huge issue. ADR is
encouraging.

Samuelson: this is another area where statutory damages are
really of concern. Google Books: 3 authors from the Authors Guild tried to
represent all authors of scanned books. Judge Chin certified the class;
reversed; it will be difficult for one small group to adequately represent
interests of all authors/creators, but it’s statutory damages that makes
everything toxic.If $750 is the
statutory members, where there’s more than a small number of works, that gets
really big really quick, and especially tech companies are at enormous risk
because they make products that interact with bunches of works.Sometimes big Ps do us a big favor though—yay
for Perfect 10 bringing so many suits. Google was able to defend where
colleges/universities couldn’t take on that risk.

Peter Jaszi: a bit about best practices.Doesn’t want anyone who’s unfamiliar with
this to come away with the impression that it’s an attempt to replicate
negotiated classroom guidelines. Couldn’t agree more with Rothman’s critique of
that failed process. Best practices are different: try to document the real and
aspirational values of practice communities around fair use and make sure info
is conveyed both to members of the community, who sometimes find it liberatory,
and to other actors in the system. Can’t go into detail on theory, but there
are many examples of ways in which these documents do seem to have liberated
scholarship, teaching, filmmaking. We’ve tried extraordinarily hard to avoid
lock-in or any suggestion that what communities can agree on is an outer limit
on fair use. Does Rothman have examples of instances in which projects she
regards as fair use have been foregone because of anything in best practices?

Rothman: She thinks it’s a great project in pushing back on
some clearance culture—likes its aspirational nature. But based on looking on
larger body of industry practices and social norms, and how courts react, she
concludes that some courts react by incorporating those practices as limits on
fair use. It’s that context which concerns her: if they were codified or used
as reason to reject/find fair use without independent scrutiny. Librarians
disagree about some things, too—we could ask whether different user groups were
adequately represented.Jaszi says the
Classroom Guidelines weren’t representative and not valuable; but best
practices doesn’t represent everyone either.(I suspect Jaszi would say that’s why the best practices define
themselves as the best practices of the user communities.)

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